In the period since September 11, there has been a six-fold increase in the number of
the FBI referrals for the prosecution of individuals classified as international terrorists,
according to very recent Justice Department data.

Prior to the attacks, there were an average of 10 such referrals a month. From
September 11, 2001 to the end of March 2002, the monthly average jumped to 59. (See graph and table.)

The surge in international terrorism referrals from the bureau -- there were a total
of 395 of them in the six months after 9/11 -- shows how dramatically the federal
government’s practices in this narrow enforcement area have changed.

From other perspectives, however, the impact of the 9/11 events on FBI enforcement
has so far been surprisingly limited. During each of the last five years, for example, drug
violations, bank robberies and frauds against banks, mostly by credit card, were the subject
of more than one third of all FBI referrals for prosecutions and more than half of all FBI
convictions. Notably, during the months since 9/11, these proportions hardly changed;
with 39% of bureau’s referrals and 54% of its convictions still involving the same kind of
matters, many of which could be handled by local authorities. (See graph.)

For a variety of reasons, relating partly to the basic dynamics of the criminal
justice system and partly to what appear to be unofficial shifts in how federal officials
define terrorism, caution is advised in the interpretation of these numbers. (See below.)

Many FBI Recommendations for
Prosecution Rejected

For all the FBI matters that were classified as international terrorism by the
Justice Department -- and in one way or another were acted upon during the six months
following September 11 -- assistant U.S. Attorneys declined to prosecute 61% of them.
Although the declination rate for the first months of FY 2002 actually was higher than for
the previous fiscal year, it was broadly similar to the annual rate since 1997. (See table.)

The proportion of terrorism matters rejected by federal prosecutors is higher than
for all matters handled by the FBI. Considering the fact that international terrorism must be
the single most serious threat confronting the FBI, the comparatively high declination rate
is surprising. One explanation, of course, is that these kinds of cases presumably are much
more challenging when it comes to gathering evidence that can be presented in federal court.
This explanation is somewhat undermined, however, when the reasons that assistant U.S.
Attorneys recorded for their declination decisions are considered. During the first months of
FY 2002, half of the referrals were turned down because of assistant U.S. attorneys decided
there was a "lack of evidence of criminal intent” or that "no federal offense [was]
evident.” (See table.)

What’s in a Mission
Statement?

Faced with growing evidence of possibly serious intelligence lapses, FBI Director
Robert S. Mueller III on May 29, 2002 announced plans for what he said would be "a
redesigned and refocused FBI.” As part of this proposed change, the director presented a new
list of FBI’s ten top priorities for the post 9/11 world. Number one was the obligation to
"Protect the United States from terrorist attack.” Number two was on a related subject:
"Protect the United States against foreign intelligence operations and espionage.” Next in
the list of FBI priorities was the mission to "Protect the United States against cyber-based
attacks and high-technology crimes.” Four and five concerned combating "public corruption at
all levels” and protecting "civil rights.”

The FBI Director also said he was shifting the assignments of a small number of
special agents --only 5 percent of the current roster of around 11,000. Within the bureau,
400 agents previously assigned to the war on drugs and 118 who had been on the white collar
crime and crimes of violence teams were re-assigned, 480 of these to the counterterrorism
field. (see graph.)

But in large old bureaucracies like the FBI, publishing a new list of agency
enforcement priorities and giving new assignments to some agents does not always result in
the hoped for results. A possible illustration of the challenge can be gained from the FBI
budget submission submitted to Congress by former Director Louis Freeh more than three years
ago in the wake of the bombings at the World Trade Center and the federal building in
Oklahoma city.

Mr. Freeh -- in his five-year strategic plan -- told Congress that hard choices had
to be made. In a world of scarce resources, he said, "issues which have the potential for
the gravest consequences must receive priority. The FBI’s goal must be to prevent horrific
acts such as Oklahoma City or the World Trade Center bombings from occurring.”

Freeh’s 1999 strategic plan envisioned three tiers of enforcement activities. The
number one target was to be "foreign intelligence, terrorists and criminal activities that
directly threaten the national or economic security of the United States.” The specific FBI
goal: to "prevent, disrupt and defeat terrorists operations before they occur.”

Despite the sweeping promises, overall enforcement priorities of the bureau so far
have remained essentially unchanged.

As noted above, however, Mr Freeh’s pronouncements appeared to have little impact in
how the FBI actually was enforcing the law. In FY 1997, fully half (50%) of all FBI
convictions were for drugs, bank robbery and bank fraud (largely by credit card). Under
Freeh’s strategic plan the importance of these crimes was downgraded, given a priority below
that of terrorism and major white collar crime conspiracies. Five years later, however, the
concentration of these crimes, if anything, has crept higher -- 54% in the first six months
of 2002. (See table.)

The FBI --Right After
9/11

Month after month, year after year, usually in a regularized way, a factory produces
widgets. In the case of the FBI -- month after month, year after year, the standard "widget”
is a finding that the bureau has uncovered sufficient evidence for federal prosecutors to
consider bringing criminal charges against an individual suspect. In the wake of September
11, Attorney General Ashcroft predicted revolutionary changes. "When terrorism threatens our
future, we cannot afford to live in the past,” he told a group of Justice Department
officials. "We cannot do everything we once did because lives now depend upon us doing a few
things very well.”

Matter-by-matter information from the Justice Department, however, indicates that
changes in the production of widgets by the department’s primary investigating agency were
not as significant or long lasting as might have been anticipated. In the period immediately
before the attacks, the FBI referrals were running around 3,300 a month, although December
2000 came in lower and March 2001 higher. With the attacks, and the necessary diversion of
FBI agents from their normal duties, referrals in September, October, November and December
dropped by about a quarter, 23 percent. Then, in January of 2002, the production of widgets
began to pick up and by March FBI referrals were back to the pre 9/11 norm of about 3,300.
(See graph and table.)

Intelligence
Officers

One apparent indication of the pre 9/11 concern about terrorism of the FBI under
former President Clinton was the sharp increase in "intelligence officers” hired by the FBI
in the 1990s. From FY 1992 to 2000, this category of FBI employee increased from 224 to 1,027
or 357%.
(See graph and table.)
From what is know, an intelligence officer’s duties are to analyze disparate pieces of
information and connect the dots. Curiously, however, recent quarterly data indicate that
from December 2000 to December 2001 the number of intelligence officers employed by the
bureau actually had declined by 5 percent. (See graph and table.)

Other Kinds of
Enforcement

The prosecution of Arthur Anderson, the collapse of Enron and investigations of Wall
Street analysts suspected of pushing the sale of questionable stocks have generated garish
headlines in the last year about white collar crime. The FBI, of course, has long been
viewed as the lead federal agency when it came to investigating these complex kinds of crime.

Very recent Justice Department data, however, suggests that the FBI’s interest in
white collar crime may be waning. During the last five years, bureau referrals for what the
department classified as white collar crime have hovered around 33% of the total of all
referrals, down from 40% in the mid-90s. During the first six months FY 2002 the proportion
of white collar crime matters sent to the prosecutors dropped to 29.6%. (See table.)

By contrast, drug referrals by the FBI are on the rise. In 1992 , such cases
represented 9.4 percent of all FBI referrals, in 2001 17.3% and in the first six months of
2002 17.4%. (See table.)

Overall FBI Performance Appears
to Improve

An examination of the Justice Department data suggests that in several ways the FBI’s
overall enforcement performance improved over the last decade. While the FBI referrals for
prosecution are substantially lower than they were in 1992, the evidence suggests this
decline may indicate the FBI is doing a better job focusing on significant criminal suspects.
(See graph.) The proportion of
FBI referrals for prosecution that resulted in conviction has gradually grown -- from 25% in
FY 1992, to 41% in the first six months of FY 2002. (See table.) During the same years,
the proportion of those found guilty on the basis of an FBI investigation also moved higher
-- from 67% to 80%. Median FBI sentences -- half got more, half got less -- went up from 18
months in FY 1992 to 30 months from October 1, 2001 to March 31 2002. (See table.)

Given the horrendous events of last September, the bombing of the Cole, and the
violent attacks on the U.S. embassies in Kenya and Tanzania, the increased focus of the FBI
on international terrorism is clearly justified. It should be understood, however, that
while the recent sharp increase in terrorism referrals in the United States does indeed mark
a growing government concern, the increase is not an index of terrorist crimes. Public
confusion about the imperfect connection between enforcement efforts and crime patterns is a
continuing reality at all levels of government. When a city police department makes an
administrative decision to increase the number of officers assigned to deal with a particular
problem like drugs, for example, drug arrests then go up. But newspaper editors and the
public often jump to the false conclusion that the growing number of arrests necessarily
means there is a growing use of illegal drugs by the city’s residents. In the same way, the
recent six-fold increase in terrorism referrals by the FBI should not be read as indicating
there has been a parallel increase in terrorism crimes.

What Gets Counted? In addition to the entirely
appropriate escalation in the government’s emphasis on terrorism, another factor that may
have contributed to the spurt in these referrals is the shift in the way almost all Americans
think about the problem. A good example of the impact that changing perceptions can have on
seemingly concrete numbers occurred in March when 66 mostly Hispanic workers at the
Charlotte/Douglas Airport in western North Carolina were indicted under multiple laws
involving the misuse of visas, permits and social security numbers as well as one charge of
entering an aircraft or airport area in violation of government security requirements. Most
of the workers -- whose immigration status was in question -- eventually pleaded guilty to
the airport security law and got time served (about a month) and a small fine. At that point
they were released to the custody of the INS.

Assistant U.S. Attorney David Brown said the investigation leading to the
indictments was "necessary and successful” because it made Charlotte’s airport less
vulnerable to terrorists. In previous years, these 66 cases almost certainly would have been
classified as simple immigration matters. But in the post 9/11 world, the choice was obvious
and each one was officially placed in the "domestic terrorism” category.

The result of this classification decision was a substantial expansion in the
government’s official count of domestic terrorism cases. This increase, in turn, can be
read in several not necessarily incompatible ways: as a sign of the growing threat of
terrorism, or as an outstanding example of the government’s successful "war on terrorism,” or
as an indication of the jumpy mood of the federal government when it comes to dealing with a
serious problem.

How Are They Counted? As indicated above, the
decisions about how matters will be categorized are made by federal prosecutors. Although the
criteria are spelled out in Justice Department manuals, the process often involves subtle
judgement calls. Last December, a painstaking investigation by the Philadelphia Inquirer
determined that some of the government’s prosecutions classified as terrorism were not. The
headline said the government appeared to be padding its terrorism enforcement numbers. Based
on this finding, Representative Dan Burton, chairman of the House Committee on Government
Reform, asked the General Accounting Office to determine whether the claimed "number of
terrorist arrests and convictions are accurate, and if the cases labeled as terrorist cases
meet any generally accepted definition of terrorism.” This GAO study is still underway.

What Cannot Be Counted? One other caution is
called for. This report focuses on only one aspect of the FBI’s counterterrorism activities:
the gathering of evidence for the prosecution of individuals who the U.S. Attorneys have
classified as being somehow involved in terrorism. Because the evidence-gathering process
often is distinct from the government’s top secret surveillance and intelligence-gathering
operations, the abrupt jump in FBI enforcement statistics does not necessarily reflect what
is going on in the government’s overall anti-terrorist effort.

By its very nature, the under cover work of the FBI is secret and not subject to
public examination. But in a highly unusual interview with The Washington Post in June,
Robert S. Mueller III said the bureau at the present time has a "substantial” number of
individuals it suspected of ties to terror under round-the-clock FBI surveillance. "Our
biggest problem is we have people we think are terrorists. They are supporters of al
Qaeda.... They may have sworn jihad, they may be here in the United States legitimately and
they have committed no crime,” Mueller said. He added that the bureau had been "pushed,
really pushed” to keep up with these suspects.

The current intense surveillance of individuals who may be connected to terrorism but
are not believed to have committed a criminal act, recalls the Cold War years when the bureau
maintained constant watch over thousands of subjects thought to have some connection with the
Soviet Union.